Thaker v Solicitors Regulation Authority

A solicitor facing possible striking off is entitled to a fair process and fair hearing. Disciplinary allegations must identify the case to be met with sufficient clarity. A Rule 4 statement should distinguish the primary facts relied upon from the allegations made on their basis, and should present relevant facts concisely and coherently. A disciplinary tribunal must confine the hearing to the case properly advanced. Findings cannot stand where the proceedings have materially exceeded the pleaded and agreed allegations, causing procedural unfairness. Findings based on dishonesty in an earlier civil judgment cannot themselves prove the disciplinary case, although that judgment may be admissible to establish relevant background facts in accordance with Constantinides v The Law Society [2006] EWHC 725.

This was an appeal by a solicitor against the decision of the Solicitors’ Disciplinary Tribunal striking him off the Roll and ordering him to pay 90 per cent of the costs. The disciplinary proceedings concerned allegations arising from payments through the solicitor’s client account in connection with transactions involving Zambian funds.

Following judicial review proceedings, the Solicitors Regulation Authority limited its case to twelve relevant transactions. The Tribunal nevertheless allowed the hearing, evidence and submissions to range beyond those transactions. It found dishonesty in relation to one payment and gross recklessness in relation to the other allegations. The central issues were whether the refusal to adjourn, the widening of the case, and the Tribunal’s findings rendered the proceedings unfair.

1. Appeal allowed in part. The appeal succeeded on the refusal to adjourn, on allowing the case to extend beyond the twelve relevant transactions, and in part on the challenge to the findings. The Tribunal’s order was set aside and the proceedings were remitted for rehearing before a differently constituted Tribunal.
2. The disciplinary process had become unfair. The pleadings were chaotic, the appellant had only a short period to prepare, and the Tribunal permitted the SRA to pursue allegations and evidence outside the case which had been clarified before the Administrative Court. Where a solicitor’s livelihood is at stake, the Tribunal must ensure that the hearing remains within the properly identified case.
3. The Tribunal had made no specific findings identifying facts in the ten traces which established gross recklessness. The evidence had not properly tested the appellant’s account of those transactions. Those findings therefore could not stand.
4. Under Rule 30 of the Solicitors (Disciplinary Proceedings) Rules 1994, and applying the guidance in Constantinides v The Law Society [2006] EWHC 725, findings of dishonesty in the earlier civil judgment could not be relied upon to prove dishonesty in the disciplinary proceedings. The judgment could be used to establish relevant background facts, but the disciplinary allegation had to be independently proved.
5. The finding concerning the Chiluba payment, although properly put in cross-examination, could not stand against the background of the unfair proceedings and required a fair rehearing. The same applied to the post-matrix payments.
6. For any rehearing, the SRA had to serve a properly drafted Rule 4 statement. It should state the facts relied upon concisely and chronologically, identify the facts said to establish actual or constructive knowledge, and then set out the allegations based on those facts. The Tribunal was to give all further directions.

The SRA was ordered to pay the appellant’s costs of the appeal and the previous Tribunal proceedings, together with an interim payment of £20,000.

1. High Court (Administrative Court): The appeal against the Solicitors’ Disciplinary Tribunal’s decision was allowed on grounds 1 and 2 and in part on ground 3. The Tribunal’s order was set aside and the matter was remitted for rehearing.
2. Solicitors’ Disciplinary Tribunal: The Tribunal found the allegations proved, struck the appellant off the Roll of Solicitors and ordered him to pay 90 per cent of the costs. That decision was set aside.